Organizations that have a responsibility for safeguarding the
health of others perform a function as public health policy makers. Such
organizations must identify, evaluate, and address, as appropriate,
risks to the health of those to whom they owe legal and/or moral duties.
These tasks require consideration of evidence--that is, what is
known--about the potential health hazard, including: what is the
likelihood the risk will materialize; how severe will the harm be if the
risk materializes; how many people are in jeopardy of being harmed; what
measures are available to prevent or mitigate the risk; and what are the
costs and impacts of those measures? Public health decision makers must
also weigh competing interests, particularly when risk management
policies have the effect of imposing burdens on others.

This paper uses a case study approach to analyze how these public
health decision-making issues are addressed in two policy
domains--allergens in public places and blood safety. Specifically, the
paper uses case studies to examine legal controversies in Canada
concerning, first, the handling of food allergens in schools and on
commercial aircraft, and second, the exclusion of blood donations from
men who have sex with men. These case studies each present unique
questions of risk assessment and management but they also raise
high-level common issues. The focus of this paper is not on comparing
the two case study contexts directly against one another, but rather the
aim is to use these problems as a foundation for exploring broader
issues and competing claims about public health risks, individual
liberties, balancing of interests, and discrimination.

The paper begins by presenting the two case study contexts, which
are areas of ongoing debate in Canada. The issue of handling food
allergens in schools has been a matter of concern for school boards over
the past decade and provincial legislators have considered the need for
legislation mandating specific prevention and emergency preparedness
actions. Recent court and tribunal decisions have been made in Canada
concerning the management of allergens on commercial airliners and the
exclusion of blood donors. The paper discusses complaints to the
Canadian Transportation Agency (Agency) alleging a failure to provide
appropriate accommodation to passengers with severe food allergies. (1)
It also focuses on the Freeman v Canadian Blood Services litigation (2)
in which a gay male blood donor argued that the permanent deferral of
donations from men who have sex with men (MSM) violates rights to
equality protected under section 15 of the Canadian Charter of Rights
and Freedoms. (3) Legislative debate about school anaphylaxis
legislation, the Agency rulings, and the Freeman decision provide
insight into how public health risks and competing interests are
characterized and addressed.

The paper next explores themes about public health risks and
policymaking that emerge in these two case study contexts and examines
the following issues: the influence of tragic events on public health
decisions; criticisms about 'disproportionate' policy
responses; addressing risks through blanket policies or case-by-case
assessments; discrimination; balancing of competing interests; guidance
from experts, and; the locus of control over a health hazard. The
conclusion addresses the need for clear, proportionate, and consistently
applied policies that are based on current evidence of risks and
benefits.

II. The Case Studies

Case Study 1: Food Allergens in Public Places

Concerns have escalated over the past decade about a reported
increase in the prevalence of food allergies, particularly among
children. Common food triggers for allergic reactions include peanuts,
tree nuts, cow milk, chicken eggs, fish, shellfish, wheat, and soy. (4)
Health Canada reports that approximately five to six percent of Canadian
children and three to four percent of adults have food allergies. (5)
Some studies suggest that food allergies are becoming more common, but
debate persists about whether rates have risen in real terms, or whether
greater public awareness of allergies has led to more self-reports and
demand for professional allergy testing. (6) In fact, rates of
self-reported allergies are typically significantly higher than rates
reported from allergy testing in clinical settings. (7)

Despite debate over the prevalence of food allergies, it is clear
that organizations that offer services to the public, including schools
and commercial airlines, must respond to the growing awareness of
allergies and take steps to provide safe environments for persons with
life-threatening allergies. Leo and Clark observe that "[w]ith the
majority of children enrolled in either a childcare facility or school,
the potential risk of a life threatening [allergic] reaction occurring
in these venues has become a significant public health concern."
(8) Behrmann points out that "[t]he presence of at least one food
allergic student within a child care setting or school appears to be
nearly inevitable." (9) He cites a U.S. survey of elementary
schools in which 55% of schools reported having ten or more pupils with
known allergies. (10) Moreover, it is estimated that over 60% of
first-time allergic reactions occur while a child is at school. (11)

Data on allergic reactions among airline passengers is more
limited. A 2008 survey of 471 persons with known food allergies who had
travelled on commercial airlines found that around nine percent had
experienced an allergic reaction during the flight. (12) Of those who
had reactions, about half self-treated while on board (typically by
taking an antihistamine) and just over a quarter notified a flight
attendant about the reaction. Six passengers had reactions of sufficient
severity that they attended an emergency department after landing. (13)
Researchers working in this area state that "[i]n fairness to the
overall scope of this problem, however, in-flight medical events are
rare, occurring as frequently as 1 event per 753 flights, with allergic
reactions accounting for 1.7% to 4.6% of all in-flight medical
events." (14) Even if serious allergic reactions are relatively
infrequent, the risk of experiencing such a reaction while flying can
create an obstacle to mobility for passengers with allergies and give
rise to a legal obligation on air carriers to provide suitable
accommodation.

Schools and food allergens: Canadian policy responses

Approaches to managing food allergy risks in schools vary across
the Canadian provinces and territories. Two provinces, Ontario and
Manitoba, currently have legislation in force requiring school boards to
develop policies for anaphylaxis (15) prevention and preparedness. Other
jurisdictions have considered legislation, typically as private
member's bills, but these have not been adopted. The most common
response has been for provincial education departments and/or school
boards to issue policies setting out procedures for creating safer
environments for students with life-threatening allergies. Allergy and
anaphylaxis advocacy groups, and organizations like the Canadian
Association of Schools Boards, have also issued policies. The following
section summarizes examples of legislative and policy responses across
Canada and includes extracts from legislative debates to illustrate the
discussion among elected officials.

In 2005, Ontario was the first province to pass legislation
addressing life-threatening allergies within schools. The Act to Protect
Anaphylactic Pupils, known as Sabrina's Law, (16) requires every
school board in Ontario to establish and maintain an anaphylaxis policy,
which must include strategies to reduce the risk of exposure, a plan for
disseminating information on allergies, and regular training for
employees to deal with life threatening allergies. The Act also requires
that every school principal maintain a file and allergy plan on each
anaphylactic student, including monitoring and avoidance strategies, and
an appropriate treatment plan. Parents or guardians have an obligation
to ensure the information on file is updated with any medication the
student is taking. The Act also allows school board employees to
administer an epinephrine auto-injector (EpiPen) or other prescribed
medication if they believe a student is experiencing an anaphylactic
reaction, even if not preauthorized to do so.

Sabrina's Law was introduced as a private member's bill
and passed initial readings in the Ontario Legislative Assembly in late
2003. The member of provincial parliament (MPP) who initiated the bill,
Dave Levac, acknowledged that a majority of Ontario school boards had
adopted anaphylaxis policies, put pointed out a lack of consistency
across the province in actual practices and preparedness to handle
anaphylaxis events. (17)

Ontario's move to adopt legislation prompted some discussion
in other provinces about the need for legislation. Manitoba passed
anaphylaxis legislation in October 2008, making Manitoba the second
province to have a law to protect students with life-threatening
allergies. Bill 232, the Public Schools Amendment Act (Anaphylaxis
Policy), requires that every school board must develop an anaphylaxis
policy to meet the needs of pupils who have diagnosed anaphylaxis. (18)

In Alberta, in 2007, a member of the Legislative Assembly (MLA),
Hugh MacDonald, urged the Minister of Education to develop legislation
like Sabrina's Law to ensure that a minimum policy standard exists
across the province. A year earlier, the provincial government had
created an advisory committee to study the issue of anaphylaxis in
schools; however, the province opted not to mandate legislative
requirements. In 2010, Mr. MacDonald introduced Motion 504, an
Anaphylaxis Policy for Schools, (19) stressing there is no legislation
in Alberta to ensure common school board policy standards across the
province to protect students from life-threatening allergies. He stated
that such allergies appear to be on the rise in Western countries, but
also noted that the causes of any apparent rise have not been clearly
identified. (20) He specifically cited the death of Sabrina Shannon in
Ontario as an example of a tragedy to be averted. (21)

Another MLA argued against imposing legislative requirements,
asserting that legislation will not allow for the flexibility for
schools to be responsive to meet student needs as they arise. In
addition, school principals may become less vigilant, as they may feel
that the problem has been dealt with through legislation. He also raised
a concern with excessive use of legislation; if legislation is adopted
to address food allergens, he asked:

To date, the Alberta government has not adopted
anaphylaxis-specific legislative provisions, but the provincial School
Act imposes a general obligation on school boards to "ensure that
each student enrolled in a school operated by the board is provided with
a sale and caring environment." (23)

In 2007, the British Columbia Ministry of Education issued the
Anaphylaxis Protection Order to address the issue of anaphylactic
conditions in schools. The Order requires that every school board
establish and maintain policies and procedures relating to anaphylaxis,
including a process for identifying anaphylactic students, a process for
keeping a record of information relating to the specific allergies for
each identified student, an education plan for anaphylactic students and
parents to encourage the use of Medic-Alert identification, and
procedures for storing and administering medication. Every board must
also establish a training strategy with information relating to the
signs and symptoms of anaphylaxis, common allergens, avoidance
strategies, emergency protocols, how to use an EpiPen, identification of
at-risk students, and emergency plans to address anaphylaxis. Also in
2007, the British Columbia Ministry of Education established the British
Columbia Anaphylactic and Child Safety Framework to provide school
boards with a broad overview of the key elements required in district
policy, procedures, and guidelines and the board level to ensure
appropriate and consistent management of anaphylaxis in the school
setting and throughout the education system.

A draft bill modeled on Ontario's statute, Bill M210
Anaphylactic Student Protection Act, was proposed in British Columbia in
2007. (24) Sabrina Shannon's death was cited in legislative debate
regarding the bill (25) and a week after the bill was introduced in the
British Columbia Legislature, a 13-year-old schoolgirl died from an
anaphylactic reaction after eating food purchased in a shopping mall.
(26) The legislation did not proceed, however, with one MLA expressing
concern about whether legislation is necessary, especially when relevant
policy tools are already in existence: "Prescriptive legislation,
by definition, will not necessarily keep our students safe. Simply
passing a law doesn't guarantee compliance or enforcement,
particularly when we are looking at things like increasing awareness and
establishing consistency right across the board." (27)

In Nova Scotia, a private member's bill, the Life-Threatening
Illness Student Support Act, was introduced in the Legislature in 2008,
2009 and 2010 but did not proceed beyond first reading, and has been
introduced in 2011. (28) The bill proposed that the Minister of
Education establish a life-threatening illness policy in schools that
would address strategies to reduce risks, a communication plan for the
dissemination of information to parents, students, and employees, a
strategy to train staff on how to deal with life-threatening illnesses,
(29) the development of an individual plan for each identified student,
and the requirement that the principal maintain a file on each
identified student. The individual plan would include an emergency
procedure and guidelines for the storage of medication. The bill allowed
a school employee to administer medication, including an EpiPen,
prescribed for the treatment of a life-threatening reaction without
pre-authorization if they believe a student is experiencing a
life-threatening reaction.

Other jurisdictions have adopted policies that echo the
requirements set out in legislation in Ontario and Manitoba. For
example, provincial education ministries in New Brunswick (30) and
Prince Edward Island (31) have policies setting out schools'
responsibilities concerning students with life-threatening allergies.
The policies address topics such as collection of health information
about at-risk students, staff training on EpiPen administration and
emergency response, and measures for restricting identified allergens.
In Quebec, the Association quebecoise des allergies alimentaires has
published guidance on anaphylaxis management (32) and each school board
develops its own protocol in accordance with the guidance document.
These protocols describe the roles of school administrators, teachers,
parents, and students in regard to mitigating allergy risks and treating
anaphylaxis when such situations occur.

Across Canada, the management of food allergens in schools has been
a matter of debate in legislatures, education departments, and school
boards. As discussed later, certain school responses have met with
backlash, as some stakeholders argue that restrictive measures, such as
bans on food products like peanuts, are both burdensome on families
unaffected by allergies and an ineffective way to protect children with
allergies.

Airlines and food allergens

In addition to attendance at schools, travel on commercial airlines
is another venue where persons with allergies may experience exposure to
foods that trigger a reaction. This section discusses complaints against
a major Canadian air carrier, Air Canada, concerning their measures for
addressing nut allergies. Concern has also been expressed about
transportation of pets in passenger cabins and risks to travellers with
allergies to animal dander. (33) This issue is not addressed here,
however, complaints about exposure to cat dander allergens on aircraft
are before the Agency. (34)

The Canada Transportation Act (CTA), Part V, addresses the
transportation of persons with disabilities within the federally
regulated transport network and aims to eliminate "undue
obstacles" to mobility. (35) In 2010, the Agency released decisions
concerning complaints against Air Canada by two passengers with peanut
allergies. Although Air Canada does not serve peanuts, other nuts,
including cashews and almonds, are included in the food catering
options. The airline cautions that it does not guarantee that food items
served on board are free of peanut traces, since it receives packaged
snacks and prepared meals from multiple catering companies. Air Canada
also states that it is not responsible for passengers who may bring on
board foods containing peanuts.

The complaints were filed by Sophia Huyer and Rhonda Nugent on
behalf of her daughter, Melanie Nugent. (36) Both claimants have peanut
allergies and have received medical recommendations to avoid all nuts.
For an international flight from Toronto to London in 2006, Ms. Huyer
advised flight attendants of her nut allergy when she boarded the flight
and requested that nuts not be served during the flight. As the catering
supplies, including nut snacks, had already been loaded onto the
aircraft, she was advised that her request could not be accommodated.
Ultimately, Ms. Huyer was rebooked on a flight later that day and Air
Canada removed nuts from the food service and made an announcement on
the flight asking that passengers refrain from eating any foods
containing nuts.

Prior to another international flight the following month, Ms.
Huyer provided advance notice to Air Canada about her nut allergy. When
she boarded the flight, however, she learned that nut snacks had been
included in the catering service and it was too late to replace them
with an alternate product. She did not wish to delay her travel and
opted to remain aboard. The captain required her to sign a liability
waiver releasing "Air Canada, the captain and his entire crew from
any liability related to [her] ... extreme allergic response to
nuts/nuts products." (37) She declined the option of sitting at the
rear of the aircraft and chose to sequester herself in a washroom for 40
minutes during the period that nut snacks were being offered in the
passenger cabin.

The Nugent complaint concerned the final, return flight segment of
a family trip from Newfoundland to Florida in 2006. Melanie's
parents informed Air Canada staff of their daughter's peanut
allergy at the time of check-in and were satisfied with the
accommodation provided, with the exception of their last flight. They
were told that cashews would be served and that an announcement would
not be made asking passengers to refrain from eating foods containing
nuts. The family was given the option of being seated at the rear of the
aircraft as a means of separating Melanie from the areas where cashews
would be offered, but the family declined this option.

In addition to considering whether these two complainants
experienced obstacles to their mobility due to a disability, the hearing
tribunal also considered "the broader issue of ... the lack of a
formal policy to accommodate persons who have an allergy to peanuts or
nuts" (38) and the resulting variability in response from one
flight to the next. A person with allergies may have a disability for
CTA purposes and the Agency makes a determination on this issue on a
case-by-case basis.

In the Huyer and Nugent complaints, the Agency found that the
allergic conditions of these two passengers constitute a disability that
impairs their mobility. The Agency ruled that a reasonable accommodation
is for the airline to provide a buffer, of exclusion, zone for
passengers with known and declared nut allergies. Specifically:

the Agency has determined that the appropriate accommodation for
these travellers, when at least 48 hours advance notice is provided to
Air Canada, is as follows:

* Air Canada will create a buffer zone for the passenger, in line
with specific parameters set out in the decision. (39)

* Only peanut- and nut-free foods will be served by Air Canada
within the buffer zone as part of its onboard snack or meal service.

* Personnel will brief passengers within the buffer zone that they
can only eat foods that are peanut- and nut-free. (40)

The Agency rejected the claimants' submission that nuts should
not be served anywhere in the aircraft cabin and that a public
announcement should be made requesting all passengers to refrain from
eating foods containing nuts. Following further submissions from Air
Canada that it cannot guarantee that its catered foods are free of all
nut traces, the Agency revised the requirement that only nut-free foods
would be served in the buffer area: "within the buffer zone, Air
Canada is required to serve only snacks and meals which do not contain
peanuts or nuts as visible or known components." (41)

Canadian Blood Services (CBS) is the agency that collects and
distributes blood and blood products for transfusion purposes throughout
Canada (Quebec has its own blood agency, Hema-Quebec). Since 1988, CBS
has required blood donors to complete a Donor Health Assessment
Questionnaire to identify various risk factors for HIWAIDS, including,
for men, the act of having sex with another man, "even once"
since 1977. Donors who disclose any of the risk factors are deferred
from blood donation and the duration of the deferral varies depending on
the risk. Men who have had sex with another man at least once since 1977
are permanently deferred from donating blood. This deferral policy is
consistent with policies in other jurisdictions, including the United
States, Germany, France, and the Netherlands. Several countries have
time-limited deferral periods, such as Australia, Japan (donors must
have abstained from sex with a man in 12 months prior to donation),
South Africa, and New Zealand (five years). (42) Most recently, in
autumn 2011, the UK Department of Health lifted its permanent deferral
policy and introduced a one-year deferral for MSM. (43)

The CBS deferral policy has been subject to criticism, with some
contending that the exclusion unfairly discriminates against gay men.
This argument was central to legal action involving a 38-year-old man,
Kyle Freeman, who revealed to CBS that he had donated blood numerous
times without answering truthfully the questions about sexual activity
with men. (44) He donated blood for the first time at a blood donor
clinic held at his high school, a period during which he had started
engaging in sexual activities with male partners. He was a regular donor
from 1998 to 2002.

In June 2002, Mr. Freeman anonymously wrote to CBS from a
non-identifying email account to express his view that the MSM deferral
policy is "inappropriate, futile, and archaic" because it
"excludes healthy donors and prejudges homosexuals." (45)
Following a response from CBS explaining its rationale for the policy,
Mr. Freeman, again writing anonymously, disclosed that he was a regular
donor. CBS responded to instruct Mr. Freeman that he must cease and
desist from donating blood and began taking steps to identify him. Mr.
Freeman donated blood within days of these email exchanges with CBS.
This donation tested positive for syphilis (Mr. Freeman was unaware of
the infection) and he became permanently ineligible to donate blood.

CBS initiated a negligent misrepresentation claim against Mr.
Freeman and he counter-claimed with a Charter action, arguing that the
MSM deferral policy discriminates on the basis of sexual orientation
contrary to section 15 of the Charter. In 2010, Aitken J of the Ontario
Superior Court of Justice ruled in favour of CBS, awarding $10,000 in
damages, and dismissed the Charter argument, determining that CBS is not
subject to the Charter because it is a private corporation and its
policy development and operational activities are not controlled by the
government. (46) Although Aitken J concluded that the Charter was
inapplicable for this reason, her judgment assesses the section 15 and
section 1 arguments and she concluded, in obiter, that the CBS policy
would fail the minimal impairment and proportionality criteria had the
analysis proceeded that far.

The judgment addresses in detail issues of risk and the competing
interests of two groups--MSM and blood recipients--both characterized as
vulnerable groups in Canadian society. (47) A central issue in the s 1
Charter analysis was whether CBS could adopt a less stringent deferral
period without experiencing an increase in donated blood infected with
HIV and other transfusion-transmissible infections. The experts who
testified all agreed that an MSM donor deferral policy is needed, but
disagreed on the appropriate length of a deferral. (48) The Court heard
expert evidence about policy options, including ten-, five-, and
one-year deferral periods for MSM. A 2007 risk assessment report from
the University of Ottawa, commissioned by CBS, concluded that a one-year
deferral period would increase the incremental level of risk, but from
the available evidence on the impact of a five- or ten-year deferral, it
could not be determined that such a policy change would raise the risk.
(49)

The safety standard established by CBS and Health Canada was key in
considering the evidence put forward in support of and opposing a
permanent ban on blood donations from MSM. Aitken J described the
standard of safety as follows: "Health Canada considers blood
safety to be the highest priority in its regulation of the blood supply
system. Its stated goal is to make blood transfusion as sale as possible
for Canadians. CBS has adopted this goal. It is consistent with the
recommendations in the Krever Report, which identified blood safety as
the paramount consideration for a national blood supply system."
(50)

The policy option of moving to a one- or five-year deferral has
been the subject of analysis in scientific literature and among blood
agencies in other countries. A recent risk analysis concludes that
"acceptance of MSM as blood donors after 1 or 5 years'
abstinence may result in a postulated increase in risk that is so much
smaller than the currently tolerated transfusion risk and so small in
absolute terms that the ethical question of fairness to the MSM group
justifies" (51) replacing permanent exclusion policies with
time-limited deferrals. Most recently, the British Department of Health
replaced its permanent deferral of MSM with a one-year deferral policy,
effective November 2011. It based this decision on the findings of the
Advisory Committee on the Safety of Blood, Tissues and Organs, which
stated that current evidence "no longer support[s] the permanent
exclusion of men who have had sex with men." (52) Modelling
analyses cited by the expert committee have predicted that moving from a
permanent deferral to a one-year deferral could result in, at worst, one
additional HIV-positive blood donation every 21 years or, at best, one
such donation every 455 years. (53) Even since this data was collected,
the methods for testing donated blood for transfusion transmitted
infections have become more sensitive, thus increasing the likelihood
that any infected units will be caught before release into the health
care system. (54)

It has also been pointed out that existing studies have only
attempted to quantify the potential increase in risk if the deferral
period is reduced, but no studies have examined whether a policy change,
accompanied by public education initiatives to explain risk factors and
deferral periods, might enhance safety by improving compliance with the
deferral requirements. In fact, the move to a one-year deferral policy
in Australia did not result in an increase in donation of HIV-infected
blood and a study of the Australian experience "concluded that it
was not the length of the deferral (1 vs 5 years), but the extent of
noncompliance with the applied deferral, which determined the risk of
collecting an HIV-positive unit." (55) A recent UK survey of MSM
found that ten percent had donated blood in the past in non-compliance
with the donor deferral policy. "[M]isunderstanding or perceived
inequity of the rule" was cited as one explanation and the authors
recommend that "[r]eplacing the lifetime MSM donor exclusion with
one seen as fairer is likely to be welcomed by most gay, bisexual, and
other men who have sex with men. Increased endorsement by the
constituency in question might improve compliance rates, particularly
among men who currently donate ineligibly owing to perceived
discrimination." (56)

Blood agencies in other countries, including the United States,
have recently re-examined their MSM donor deferral policies,
highlighting the state of flux in this public health policy area. After
an expert conference in 2010 "examining the scientific and societal
implications of changing the ban," U.S. officials "vot[ed] to
continue the lifetime deferral." (57) Sweden adopted a one-year
deferral in 2010, and after moving from a ten- to five-year deferral in
2009, the New Zealand blood agency plans to review its policy again in
2013. In Canada, in response to the Freeman ruling, a CBS media release
stated that "this judgment does not mark the end of Canadian Blood
Services' efforts to refine its screening process" and the
Chief Executive Officer remarked: "We will continue to work with
stakeholders on all sides of this issue to find a solution that
continues to place priority on patient safety, while minimizing the
societal impact of our policies on certain groups." (58) Indeed, in
October 2011, CBS announced it is committed "to re-examin[ing] this
policy, with a view to reduce this lifetime exclusion to no less than
five years and no longer than 10 years." (59) Any change to the
deferral policy will require regulatory approval from Health Canada and
CBS anticipates submitting a policy change request to Health Canada in
March 2012.

III. Discussion

This section draws on the two different case studies to explore the
following issues: the influence of tragic events on public health
decisions; criticisms about disproportionate policy responses;
addressing risks through blanket policies or case-by-case assessments;
discrimination; balancing of competing interests; guidance from experts;
and the locus of control over a health hazard.

The influence of pivotal events

High-profile events, particularly those that are viewed as scandals
or tragedies, (60) may influence how health risks are addressed and can
prompt legislators and policy-makers to adopt particular risk mitigation
measures. The influence of a tragic event on law making is evident in
the Province of Ontario's legislative response to the death of
Sabrina Shannon--the legislation even bears her name, after the Private
Member, Dave Levac, who introduced and advocated for the bill, sought
permission from the child's mother to recognize her in this manner.
Another MPP described the impact of the child's death on his
colleague: "he has ... spoken ... many times about the incredible
inspiration he has received from this tragic loss of a young life.
I've been with him watching him pursue this legislation for a long,
long time now. So Sabrina, no doubt, kept Dave Levac on track, kept him
persevering, kept him committed and kept him tenacious about this bill
being passed." (61) Upon passage of the bill, another MPP
commented: "Sabrina, though gone, will live on through others and
the effects this bill will have ... on the lives of many students."
(62)

The experience of the contamination of Canada's blood supply
with HIV and hepatitis C during the late 1970s and 1980s devastated
"[p]ublic confidence in the safety and efficiency of the blood
system" (63) and the subsequent recommendations of the Commission
of Inquiry on the Blood System in Canada (the Krever Commission) sought
to "reduce as much as possible the likelihood that another tragedy
... would happen again." (64) Indeed, the findings of the Krever
Commission have had an enduring impact on blood service policies. Aitken
J observes that blood system safety is paramount in the Krever Report:
"[m]ore than anything else, the Krever Report emphasized that, when
creating and operating a blood supply system, the principle of safety
must transcend other principles and policies." (65) Further,
"[a]s was clear from the Krever Report, Canadians expect their
governments and their blood operators to make safety of the blood supply
system a paramount consideration; there is no collective tolerance for
any contamination of the blood supply." (66) She also noted the
link between the MSM donor deferral policy and the history of
contamination of the blood supply: "The overall objective of donor
deferral policies ... is assuring a safe blood supply. No one can
question the pressing and substantial nature of this
objective--especially in light of the tainted blood tragedy." (67)

The experience of a tragedy may lead to a situation where public
health decision-makers, including a judge adjudicating a legal claim
about public health policy, cite collective societal agreement as the
basis for a very low risk tolerance. In Freeman, Aitken J states:
"this debate is occurring in the wider context of the protection of
the safety of Canada's blood supply system after the tainted blood
tragedy ... Canadians have decided that blood safety is to be the
paramount consideration in the blood supply system; that does not leave
room for any move in the direction of lessening safety standards."
(68)

The experience of a tragedy may also influence views about the
reasonableness of policy measures and the rationality of fears. If a
tragedy or scandal has not occurred, it may seem unreasonable and
onerous to mandate that organizations must implement policies and
procedures to mitigate a public health risk. Once that risk has
materialized, however, especially on a large scale like the
contamination of the blood supply, attitudes often change, as is evident
in the following statement from the Freeman decision: "In the wake
of the tainted blood tragedy, and continuing, though rare, reports of
instances of contamination, such a fear is not irrational." (69)

While these comments from Freeman focus on the role of past tragedy
in justifying safety standards and fears of contamination, other
commentators consider a negative side of the legacy of the tainted blood
scandal. A prominent American bioethicist argues that "[t]he
history of the devastation of those suffering from hemophilia in the
United States by HIV is the core reason why the current policy banning
gay men has not changed despite huge advances in testing
technology." (70) A high safety standard is clearly necessary to
protect recipients of blood products, but this point warns against
allowing tragedies of the past to delay policy changes that are
supported by current evidence of safety. In a 2011 commentary, Leiss
also emphasizes this point:

Tragic events can also inappropriately impel officials to use their
most authoritative or prescriptive powers. During the period when the
proposed Anaphylactic Student Protection Act was introduced in the
British Columbia Legislature, a 13-year-old girl died from an
anaphylactic reaction after eating food purchased at a food outlet in a
shopping mall. Her EpiPen had been left in her school locker. MLAs in
favour of the bill cited this tragedy as underscoring the need for
legislation. In contrast, another Member suggested that a tragic event
may lead to a false conclusion that legislation is the solution: "I
think it's natural, when we're dealing with a response to a
child death, that our reaction brings us to the highest level of action
that we can take in this House, which is legislation. It's a
natural reaction." But she cautioned that legislation is not
necessarily the best response:

Critiques of disproportionate public health responses

The policy and legal measures to manage food allergens and blood
safety have been publicly criticized as over-reactions, with some
critics going so far as to describe responses to certain foods in
schools as a form of hysteria. Measures to restrict peanuts and peanut
butter have been a particular target of criticism. For example, a 2009
article in Chatelaine magazine, a widely read women's magazine in
Canada, was titled "It's Just Nuts" and opened with the
assertion that "[a] cross the country, parents and schools are
cowering in fear of the tiny peanut." (73) The author argued that
the perceived hazards of food allergies are exaggerated, asserting that
being killed by a lightning strike is more likely than dying from
anaphylaxis: "The only available figures [about anaphylaxis risk]
come from Ontario, where allergists researching fatalities gathered
information from coroner's offices and found that 32 adults and
children died from food allergies between 1986 and 2000. In the same
time frame, more Ontarians were killed by lightning." (74)

In 2008, Harper's magazine published a commentary decrying
"the exaggerated threat of food allergies". (75) The author
argued that "the rash of fatal food allergies is mostly myth, a
cultural hysteria cooked up with a few ingredients: fearful parents in
an age of increased anxiety, sensationalist news coverage and a coterie
of well-placed advocates whose dubious science has red the frenzy."
(76) The author acknowledged that "[t]here is no question that food
allergies are real", but suggested that "exaggerating the
threat may actually do as much harm as the allergies themselves. The
peril is now perceived as so great that psychosomatic reactions to foods
and their odors are not uncommon." (77)

Dr. Nicholas Christakis, a Harvard medical sociologist, wrote a
2008 article in the British Medical Journal, with the headline:
"This allergies hysteria is just nuts--A crackdown on nuts is
making things worse in a cycle of overreaction and increasing
sensitisation". (78) He described a situation where children were
ushered off a school bus after an errant peanut was seen rolling around
on the floor. He writes that school responses have "the hallmarks
of mass psychogenic illness" and put "otherwise healthy people
in a cascade of anxiety." (79) He also wrote:

While some critics decry bans on peanuts as 'hysteria',
the MSM blood donor deferral rule is challenged as homophobic and
discriminatory. One critic of permanent deferral policies observes:
"One group of US residents has a HIV prevalence 17 times that of
their comparator: black versus white women. Yet there is no call for a
lifetime ban on that demographic group from donating blood. Why? It is
because we are more sensitised to racism than to homophobia." (81)
Klugman argues that the MSM ban is an example of moral panic: "A
panic links one suspect thing with one definitely bad thing, which gives
the message that the suspect thing must actually be bad ... the blood
industry seems to lump MSM in with other at-risk populations, conflating
the danger and the discrimination." (82) Other risk populations for
blood donations include persons from certain African countries,
injection drug users, and sex trade workers. Klugman continues the
argument: "By lumping these groups together, the [blood agency]
implies that being born in certain places or being an MSM makes one the
same as drug abusers and prostitutes, two populations that are highly
stigmatized and despised in the United States." (83)

People who believe the MSM donor exclusion is a disproportionate
and discriminatory policy response may express their opposition by
choosing not to donate blood and withdrawing support for blood donation
campaigns. For example, at some Canadian universities, student union
associations have elected to exclude mobile blood donor clinics from the
campus as a protest against the MSM policy. (84) To the extent that such
reactions diminish the available pool of blood donors, blood supply
agencies must weigh the tradeoffs involved and consider which course of
policy action achieves desired levels of safety and donation rates. (85)

The basis of the Charter claim in the Freeman case is that the
policy is a disproportionate and discriminatory response to the risk.
Aitken J agreed that, had Mr. Freeman succeeded in arguing that the
Charter applied to CBS, the permanent deferral policy would rail the s 1
analysis. While the court would give "considerable deference"
(86) to CBS's insistence on not reducing safety standards,
"[t]he problem is that CBS, and Canada, have very little scientific
or other information to inform a choice as to what deferral policy is
reasonably required" (87) to protect the blood supply. Moreover,
"evidence was lacking of the existence of real concern that would
make a deferral period of 33 years necessary in order to maintain the
currently level of safety." (88) Aitken J thus concluded that the
policy would not constitute a minimal impairment under s 1 if the
Charter applied to CBS. (89)

Policy options--blanket policies or case-by-case measures

In the case studies under analysis, the organizations involved face
choices about establishing a uniform (or blanket) policy to manage a
health risk, engaging in case-by-case assessments, or using a
combination of these approaches.

In provinces that have legislation aimed at protecting students
with life-threatening allergies, school boards have a uniform obligation
to comply with the statutory requirements. The legislation, however,
sets out broad duties on boards to establish anaphylaxis policies that
meet certain requirements (e.g., strategies to reduce exposure to
allergens, training for staff) but individual boards have the discretion
to tailor policies and plans to the specific needs of their student
population. The backlash against schools has focused primarily on local
responses (e.g., banning peanut butter sandwiches) rather than on the
enactment of provincial laws that set out general requirements. Indeed,
the school anaphylaxis legislation can be described as establishing
"a minimum level of safety" (90) and does not, itself,
prescribe bans or restrictions on specific potential food allergens.

The response to food allergens of the two major national airlines
in Canada includes a uniform policy of not serving peanuts, but other
accommodation occurs on a case-by-case basis. Air Canada adopted a
uniform policy of phasing out peanuts from their packaged snack options,
but other nuts may be part of the on-board snack and meal services. The
airline warns, however, that it cannot guarantee that the food it serves
is free of all traces of peanuts. WestJet does not offer any nut snacks,
but likewise warns that it cannot guarantee that snacks are free of
traces of nuts. As discussed earlier, the Agency requires airlines to
provide reasonable accommodation to passengers with disabilities, but
the Agency does not mandate specific restrictions regarding potential
food allergens.

In the United States, the federal Department of Transportation,
after a year of considering public input, declined to impose specific
rules regarding the service of peanuts on commercial aircraft, leaving
it to airlines to develop their own policies. Policies vary among U.S.
carriers; some will suspend service of peanut snacks if an allergic
passenger provides advance notice and others will serve peanuts, but
provide a buffer area around the allergic passenger's seat.
Submissions to the Department of Transportation contended that "a
complete ban on peanuts and tree nuts would be the most direct solution
but that this step is drastic in nature and impractical." (91)

Interestingly, a 1999 federal law in the U.S. stipulates that any
regulations concerning peanut service on commercial aircraft may only be
adopted following "submission to the Congress and the Secretary [of
Transport] of a peer-reviewed scientific study that determines that
there are severe reactions by passengers to peanuts as a result of
contact with very small airborne peanut particles of the kind that
passengers might encounter in an aircraft." (92) This legislative
language sets a high bar: "severe reactions" to "very
small airborne" particles. As such evidence is not currently
available, the Department of Transportation is legally prohibited from
mandating a peanut ban on commercial carriers.

The CBS policy is an example of a blanket policy that aims for a
high level of safety for recipients of blood and blood products. As
noted earlier, CBS has adopted Health Canada's goal of making blood
transfusions as sale as possible for Canadians, in accordance with the
Krever Report recommendations that identified blood safety as the
paramount consideration in the regulation of the blood supply. (93)

Donor screening based on group characteristics, rather than
individual assessment, is a common approach used by blood agencies:
"Blood donor screening in Canada, and in most other developed
countries, is conducted on a group basis in regard to the risk of
transmission of a disease of which the prospective blood donor does not
currently exhibit symptoms." (94) In the Freeman litigation, expert
evidence was led to support an individualized assessment procedure that
would rule out donors on the basis of more specific risk factors, rather
than the blanket exclusion of any man who has had sex with another man
since 1977. For example, one expert

This type of individual assessment would require detailed
questionnaires that would ask donors to disclose accurately specific
details of their sexual history. Experts who oppose this approach argue
that a longer questionnaire would be more time-consuming, thus taking up
more staff time and discouraging donors. Further, some donors may not be
forthright in answering questions about intimate aspects of their sexual
experiences. Individualized assessment may undermine the effectiveness
of the donor screening process. In Freeman, evidence was cited from
Spain and Italy showing that more infected blood was collected when
agencies in those countries used individualized donor assessments.
Aitken J ultimately rejected individualized assessment as being
unworkable for blood agencies: "Requiring CBS to do a more
individualized assessment of risk relating to HIV and other STIs
[sexually transmitted infections] would be altering the entire system
and structure of blood donor screening in the country." (96)
Moreover, "an individualized approach would be different from that
used in virtually all of the developed world, and could bring the
Canadian blood supply system into disrepute." (97)

Interestingly, a 2011 British survey of MSM and their understanding
of and compliance with blood donation rules revealed: "Of
widespread concern was the 'blanket' nature of the ban and its
failure to distinguish between lifestyles conferring different risk
status." (98) Britain has now moved to a one-year deferral policy,
still a blanket policy rather than a case-by-case assessment, but for a
much shorter time period. In announcing the change, the National Health
Service commented:

The issue of discrimination

The Freeman litigation squarely raises the issue of discrimination
in how CBS has chosen to address the public health risk of certain
blood-borne diseases entering the blood system. The complaints against
Air Canada are also founded on discrimination concerns and dispute about
measures that offer reasonable accommodation for travellers with
disabilities. Discrimination claims have also been raised in relation to
school responses. In Ontario, a mother of a boy with life-threatening
allergies to peanuts, other nuts, eggs, and dairy, filed a complaint
with the provincial Human Rights Tribunal 2009 alleging that the
school's proposed accommodation plan did not go far enough in
protecting the child. (100) The mother "wished the Board to
prohibit all substances that might cause an anaphylactic reaction,"
(101) including restrictions on foods available in vending machines, at
school events, and sold through school fundraising initiatives. As a
result, the mother argued her son was being discriminated against on the
basis of a disability in having his entry to junior kindergarten
delayed. The mother sought an expedited hearing, but the Tribunal denied
this request, determining that complex, expert evidence would be
required for a full adjudication of the dispute "about the extent
of the measures required to accommodate the applicant's
allergies." (102) In 2007, parents of students in a Toronto of area
elementary school initiated a human rights complaint arguing that the
school had inappropriately relaxed its anaphylaxis protection measures.
The school had a practice of asking parents to list the contents of
their child's lunch on the outside of the lunch bag and teachers
would inspect them to check for allergens. It eliminated this procedure
"as it was considered onerous and expensive." (103) The
complainants and the school negotiated a resolution that involved
re-instating the inspections. (104) Parents of a young boy with
allergies to milk and peanuts filed a human rights complaint in Manitoba
after their daycare advised them to find alternate care arrangements for
their child. The Board of the daycare had "determined that it was
too stressful for staff and inconvenient for other children in the
daycare to have [the boy] attend the facility." (105) It appears
this matter was resolved without a hearing before the human rights
tribunal.

In addition to discrimination claims arising from barriers to
access to education (or other services, such as transportation in the
case of airlines), discrimination issues may arise if children with
allergies are singled out in inappropriate ways within the school
system. In the United States, for example, the federal Rehabilitation
Act

In Canada, legislation such as Sabrina's Law in Ontario does
not have provisions addressing exclusionary treatment of children with
allergies but parents may have recourse under provincial human rights
legislation if a service provider, such as a school, denies the child a
service on the basis of a disability.

Balancing of interests

Public health policy-making often involves balancing the interests
of multiple stakeholder groups. In the context of food allergies,
policy-makers must consider how to provide safer environments for
persons with allergies (for example, students and airline passengers)
while not excessively restricting the freedoms of persons without
allergies. Parental interests much also be addressed when the situation
involves children as the parents make choices on behalf of their
children. Blood agencies must ensure the safety of blood supplies and
protect blood recipients from transfusion transmissible infections. The
interests of blood donors are also key, as without donors, blood systems
could not exist. The case studies also require consideration of the
types of risks and interests at stake and the extent to which they are
analogous. In both case study contexts, one group faces a health risk
(persons with allergies, recipients of blood products), while another
group experiences some form of restriction on liberty. Policy options
that may result in increased risks for the former group may offer a
benefit to the latter group and the two sides of the scale may be
difficult to compare. To illustrate, removing the permanent MSM blood
donation deferral may eliminate one factor that contributes to negative
stereotypes about gay and bisexual men, but it is challenging to value
this benefit against a potential increase in health risks to people who
receive donated blood products. Leiss and colleagues have described the
problem: "Thus in this case the possible benefit to one group can
only be obtained by imposing an increase in risk upon an entirely
different group. Moreover, the benefit in question is of a qualitatively
different kind from that of the risk; the two are incommensurable."
(107)

To reduce risks for children with life-threatening food allergies,
some parents have lobbied for bans on specific foods, particularly
peanuts and other nuts, and some schools have adopted
"nut-free" school policies. As discussed earlier, these
restrictive policies have generated controversy. One U.S. scholar
observes:

Parents of non-allergic children take offense in not being able to
send their children to school with one of America's favorite lunch
staples, the peanut butter and jelly sandwich. On the other hand,
parents who live with the daily fear of anaphylactic shock advocate for
peanut-free schools to protect their allergic children. Teachers,
administrators, and school personnel are troubled by the possible
[legal] repercussions ... a growing number of school principals and
program administrators fear being sued ... or of being accused of
discrimination against children disabled by a peanut allergy. School and
program administrators are perplexed and apprehensive over the demands
of both groups of parents (those with children who have allergies and
those without). (108)

While the freedom to bring a peanut butter sandwich to school may
seem trivial compared to the health interests of a child with a
life-threatening allergy to peanuts, conflict has arisen among families
and school personnel on this issue. (109) A recent editorial in a
leading allergy journal advises:

Indeed, some parents argue that bans on peanut butter amount to
more than a minor inconvenience. For children without allergies, peanut
butter is a nutritious, palatable food and some situations have been
reported where parents of a fussy eater say that peanut butter is among
the few foods the child will eat. A mother in New York City started a
petition opposing a nut ban: "[s]he believes that her child is
being discriminated against because he only eats peanut butter."
(111) The author of the controversial Chatelaine article mentioned
earlier wrote that her "son is a picky eater ... [but] he does have
a consistent passion for health-food store peanut butter on whole grain
bread. The trouble is that I can't feed him that [in school
lunches]." (112) The recent situation of a first grade girl with a
life-threatening peanut allergy made headlines after parents of
non-allergic children argued the girl should be home-schooled so other
children and families do not bear the burden of accommodating her
allergies. (113) 0ne father reportedly stated, "If I had a daughter
who had a problem, I would not ask everyone else to change their lives
to fit my life." (114)

Concerns about limiting the food choices of other students were
raised in Committee hearings by a member of the Ontario Legislative
Assembly. He described his own family's reaction when his child
started at a new school that sent home a list of food children should
not bring for lunch or snacks:

An Alberta MLA who advocated [or provincial legislation appeared
mindful of balancing competing interests and emphasized that the aim of
law-making was not to bah specific foods: "No one is saying that
we're going to ban any kind of food or food product from a school
or from a cafeteria or from a field trip. No one is saying that
whatsoever." (116) This point was also made in legislative debate
in British Columbia, where an MLA looked to Ontario for an example:
"Sabrina's law does not call for the banning of products in
schools. Rather, it is a more balanced approach that requires school
boards to ensure that there are individual school-based plans for each
student suffering from anaphylaxis, as well as policies to reduce
exposure to causative agents." (117)

Nut-free school measures have also been criticized as increasing
the risk to children with life-threatening allergies as the claim that a
school is free of nuts may create a false sense of security. A focus on
nut allergies may also detract from the concerns of children with food
allergies that are less common. (118) There has been a focus on peanuts
in schools and on airlines, but other foods, including cow milk and
chicken eggs, also trigger allergies. Given the common use of these
foods as ingredients, it is not feasible to propose that they, too, be
eliminated. A member of the Manitoba legislative assembly commented on
these issues in discussing the anaphylaxis law in that province:
"This bill is not about banning anything. For one thing, there are
so many different allergies, it would be impossible to ban every
allergy, particularly food allergies that children in the school may be
facing ... banning is not the answer because it can give people a false
sense of security. " (119)

The Canadian Association of School Boards has commented directly on
the need to balance interests of non-allergic and allergic students:

In contrast with the substantial discussion of balancing interests
of allergic and non-allergic students in schools, the Agency decision in
the Huyer and Nugent complaints touches only briefly on the interests of
other passengers. This may reflect Air Canada's emphasis on
producing evidence to show that any risks to passengers with allergies
are mitigated by not serving peanuts (which are known to be a more
common allergen) and the use of air filtration and exchange systems that
provide high air quality. Thus, Air Canada did not appear to emphasize
the interests of other passengers, but rather focused on its steps to
accommodate those with allergies. The only explicit mention of
inconvenience to other passengers occurred when Air Canada noted that,
on one of Ms. Huyer's flights, "its caterer had, by chance,
other snacks that were used to replace the almond service in business
class, but this was at a cost to Air Canada and a disappointment to many
of its customers who happen to like the almond snack. It served packaged
snacks of a lower quality." (121)

The balancing of interests is clearly a key issue in the Freeman
case. In particular, the interests of MSM as blood donors are
characterized as 'special interests.' Aitken J stresses that
blood donation is a privilege, not a right, and states in the opening
paragraphs of her ruling that "[t]he law does not give anyone in
Canada the right to donate blood." (122) Early in her judgment,
Aitken J rejects special interests and underscores the need for
evidence-based policies to ensure the safety of the blood supply:
"I cannot let sympathy, public opinion or pressure from interested
groups influence the outcome ... My judgment must be based on my best
effort to apply the law ... to the facts that I find are supported by
the evidence." (123)

Other commentators have framed the issue differently. For example,
after concluding that a move to a five-year deferral policy would not
increase blood safety risk above the level of already-tolerated risk,
Vamvakas argues that the balancing question comes down to which of the
following "positions is the most ethical one: not to tolerate a
minimal risk to protect transfusion recipients or to tolerate a minimal
risk to be fair to the MSM group." (124) The University of Ottawa
expert report commissioned by CBS explicitly addressed issues of
balancing and transferring risks. Based on the evidence available at the
time the authors prepared their analysis, they concluded that "a
shortening of the current MSM donor deferral period to 1 year would
constitute a covert and unacceptable risk transfer from the male
homosexual and bisexual community to the community of blood recipients.
Such a transfer would be both unreasonable and unfair." (125)

Aitken J's reasoning reveals a broader characterization of the
groups whose interests are in conflict. While the issue is typically
framed as MSM blood donors on one side and blood recipients on the
other, Aitken J also, at times, describes the second group more broadly
than blood recipients, and refers to the "blood supply
system", the "health care system" (126) and, in language
that suggests a personal stake involving all Canadians, "our
collective well-being." (127) Klugman's discussion of moral
panic, noted earlier, is perhaps relevant here, too. He contends that
blood donor deferral policies associate MSM with drug addicts and
prostitutes and, in doing so, exacerbate stigma and moral condemnation.
(128) By linking blood recipients, the health care system and
"collective well-being", arguably the opposite effect may
occur.

The guidance of experts

Both case studies demonstrate a clear need for expert guidance. All
parties to the Freeman litigation concurred with the need to make
decisions based on the best evidence: "No one at this trial debated
that policy decisions in the area of blood donor screening and deferral
must fundamentally be based on the best available research." The
expert witnesses agreed that, statistically, MSM have a higher risk of
infection with HIV. (129) While this fact is established as empirically
true, disagreements arise in deciding the best policy to mitigate the
risk that a male blood donor who has had sex with a man will contaminate
the blood supply. The Freeman decision speaks explicitly of expert
decision-making and, centrally, the importance of risk assessment
decisions by experts over lay individuals: "We expect those with
the most knowledge in a particular area impacting on our safety and
security to be the ones setting the standards in that area. We do not
expect individuals to be able to set their own standards when our
collective well-being is at stake." (130)

Some commentary in policy-making regarding allergy prevention and
preparedness in schools advocates for a 'caring parent'
standard:

But the statements of some parents provide a counter to this
suggestion. For example, a father of two children with severe allergies,
and the chair of an anaphylaxis education group, gave evidence at an
Ontario Standing Committee. He acknowledged a lack of objectivity and
professional knowledge: "the safety of thousands of kids in Ontario
shouldn't depend on ... individual parents and their personal and
unprofessional knowledge ... it is a very emotional issue, and it is
very hard to come in calmly and rationally." (132)

Putting oneself in the shoes of a person or family personally
affected by a health risk was also raised in debate in the Alberta
legislature. After one Conservative MLA, Doug Griffiths, spoke against
legislation, a Liberal member replied, "I'm going to take a
very personal approach to this motion. I'm going to suggest that if
the hon. member's children suffered from these types of allergies
and complications, he wouldn't have gotten up and made that
statement." (133)

In the context of food allergies, an area of controversy about
routes of exposure concerns the degree of risk posed by airborne
exposure to allergens. This issue is central in the Agency analysis and
arises also in discussions about appropriate responses to potential food
allergens in schools. While some people raise concerns about allergic
reactions from airborne particles, a recent summary of evidence
regarding allergy risks states:

These authors thus argue that "[k]nowing the established
evidence about the real versus perceived risks of reactions in
educational settings is essential in school planning for children with
food allergies." (135) Interestingly, in legislative debate about
proposed anaphylaxis preparedness laws, some members make statements
about sources of risk and the magnitude of the problem without reference
to the evidentiary basis for such claims. For example, in regard to
allergy triggers, a Manitoba MLA, Erin Selby, commented:

The Canadian Society of Allergy and Clinical Immunology (CSACI) has
stated: "The potential risk of life threatening allergic reactions
to airborne food particles such as peanut of shellfish is negligible.
Presently we would not recommend a ban based on the risk of reactions
from the inhalation route of exposure." (137)

The risk from airborne particles has also been a matter of debate
in the context of airlines. One survey found that, of respondents who
reported experiencing an allergic reaction to peanuts or tree nuts on
board an airplane, 48% identified inhalation of allergic particles as
the route of exposure, rather than oral ingestion. The authors point out
that this self-reported finding is much higher than that presented in
previously published studies and observe: "reactions might occur
from unrecognized trace ingestion, and ate mistakenly attributed to
non-oral routes of exposure. Also, anxiety-induced symptoms may result
from visual cues rather than allergen exposure. Such misperception of
non-oral routes of exposure could be contributing to an overestimation
of the true prevalence of in-flight reactions." (138) Indeed, Air
Canada led evidence before the Agency arguing that airborne exposure is
of negligible risk. This evidence addressed allergy
triggers--particularly the extent to which persons with allergies are at
risk if other passengers consume nuts--and the effectiveness of air
filtration and exchange systems. (139) The Agency accepted the evidence
that "there is very little chance that airborne allergens will
cause or trigger severe anaphylactic reactions" (140) and that oral
ingestion from inadvertent cross-contamination is a matter of more
concern.

Control over the hazard

As a final issue that merits brief analysis, competing views about
risk identification and mitigation also raise the issue of how control
over a potential health hazard may be exerted. The question of balance
that arises here is the extent to which individuals can protect
themselves from a hazard versus the extent to which they rely on
institutions to implement protective safeguards. The two case studies
involve layers of defense mechanisms, though the party that establishes
and uses these layers differs. In the case of food allergies, it is
predominantly the affected individual who uses various layers of defense
(for example, eating food prepared themselves, reading package
information for allergen information, asking questions about food
preparation, carrying epinephrine). In the complaints against Air
Canada, the airline emphasized that passengers bear the onus of
self-protection: "if a passenger is allergic or sensitive to
products that may be found in the aircraft cabin, it is the
passenger's responsibility to bring the proper medication and to
have the proper protection." (141)

In regard to allergies, distinctions are made on the basis of age;
greater protection should arguably be made available for young children
with allergies who have less experience in self-protection. For example,
the CSACI does not generally advocate for restrictive policies that ban
potential allergens from schools, but recommends more stringent
approaches where very young children are involved: "In the nursery,
day care setting and earlier public school grades where there are peanut
allergic children no peanuts, peanut butter or peanut containing foods
should be allowed, since it is extremely difficult to avoid accidental
ingestion ... In the higher public school grades and high school
settings complete avoidance policies while desirable may be
impractical." (142)

In the blood donation context, the layers of defense are
implemented at the system level, rather than at the level of individual
blood recipients of donors. Indeed, recipients of blood and blood
products must rely exclusively on measures that third parties take to
ensure safety within the system. The blood service agency uses donor
health screening, stringent testing, heating treating, and other
measures, to reduce the risk that contaminated blood will enter the
system.

IV. Conclusions

The case studies presented in this article involve known public
health risks, that is, food allergies and transfusion transmissible
infections. If the risk materializes, the consequences are potentially
severe for an anaphylactic student or airline passenger who is exposed
to a food allergen or a patient who may receive contaminated blood that
enters the blood supply. The case studies also involve contexts where it
is impossible to reduce the risk to zero. Competing views arise in how
best to address the risks and whether the responsible organizations
ought to enforce restrictive policies that cause, at a minimum,
inconvenience, and, more gravely, discrimination and stigmatization.

The standard of safety selected by the public health policy maker
is key to analyzing their options. The sectors examined here--a blood
agency, schools, and airlines--reflect points along a safety spectrum.
As discussed, CBS and Health Canada seek to reduce the risk of
transfusion transmissible infections as much as possible. Those who
oppose the MSM exclusion rule do not reject this high safety standard
itself, but argue that measures less restrictive than a permanent donor
deferral will achieve that standard. Schools and airlines also seek to
provide sale environments for students and passengers, but with the
limitation that neither space can be free of all potential food
allergens. In the airline context, the experts who gave evidence before
the Agency agreed "that it is impossible to create an allergy-free
environment in the aircraft cabin." (143) In schools, claims of
providing nut-free environments have been criticized as creating a false
sense of security. As with airlines, a school cannot control all the
food that comes onto the premises.

In Freeman, Aitken J quotes the Krever Report in stating that a
"public health philosophy rejects a need for complete evidence
about risk." (144) But those responsible for establishing policies
must ensure their choices are based on up-to-date evidence and they
should be cautious about perpetuating misinformation about risks that
exacerbates stigma or stereotypes. In blood donation, the donor--that
is, the person who does not bear the health risk--is the one for whom
stigmatization and exclusion is a concern. In food allergies, it is the
opposite: the person who bears the health risk may face stigmatization
by being singled out and treated differently because of their medical
condition. Literature on managing allergies in schools underscores the
importance of not making children feel stigmatized--for example, by
segregating them in one area of a lunchroom or cafeteria. (145)
Interestingly, segregation via a 'buffer zone' is precisely
the solution mandated as reasonable accommodation on commercial
aircraft.

Proportionality of the response to the risk is key. Organizations
that establish policies to address an identifiable risk to public health
must ensure the policy response is proportionate to the risk. In her
analysis of the CBS policy, Aitken J said that a small risk demands a
proportionate policy response. This parallels the airline case: the risk
to passengers with allergies is small, thus the Agency rejected measures
it viewed as disproportionate accommodation, such as a ban on all nuts
and public announcements asking passengers not to eat food they have
brought on board if it contains nuts. Some schools have also rejected
measures that are viewed as too onerous or intrusive.

In addition to attaining a proportionate response to the public
health risk and balancing the interests of various stakeholders,
organizations must ensure their policies are administratively workable.
A uniform policy is often more easily administered than a policy that
requires individual assessments and variation across organizational
sites, though the latter may be less vulnerable to a charge of
discrimination. (146)

Clear policies that are applied consistently are optimal. Variances
in the application of policies are problematic in that persons who
interact with and rely on service providers--such as airline passengers,
blood donors, blood recipients, students, parents--face uncertainty in
how risks will be managed. The complaints against Air Canada illustrate
how passengers with allergies may receive variable treatment from one
flight to the next. (147) MSM have reported confusion about deferral
rules, suggesting that clearer communication is necessary. (148)
Additionally, blood donors who are told they are ineligible to donate
should receive "a clear explanation of the reasons why they are not
acceptable as donor." (149) Inconsistent application of policies
may also increase legal liability risks for organizations. Just as
service providers should strive for proportional responses to risks,
they should ensure that policies are applied consistently. All persons
who interact with the service provider will know what to expect. Lastly,
organizations must be responsive to new evidence and amend and update
policies as appropriate over time.

(1) Decision No 4-AT-A-2010, "Applications by Sophia Huyer and
Rhonda Nugent, on behalf of her daughter Melanie Nugent, against Air
Canada regarding difficulties they experienced relating to peanut and
nut allergies", Canadian Transportation Agency (6 January 2010),
online: Canadian Transportation Agency [Decision No 4-AT-A-2010]. See also
Decision No 431-AT-A-2010, "Applications by Dr. Sophia Huyer and
Rhonda Nugent, on behalf of her daughter Melanie Nugent, against Air
Canada", Canadian Transportation Agency (19 October 2010)), online:
Canadian Transportation Agency [Decision No 431-AT-A-2010] and
Decision No 228-AT-A-2011, "Applications by Dr. Sophia Huyer and
Rhonda Nugent, on behalf of her daughter Melanie Nugent, against Air
Canada", Canadian Transportation Agency (16 June 2011), online:
Canadian Transportation Agency [Decision No 228-AT-A-2011].

(2) Canadian Blood Services v Freeman, 2010 ONSC 4885 [Freeman].

(3) Part I of the Constitution Act, 1982, being Schedule b to the
Canada Act, 1982 (UK), 1982, c 11.

(5) Health Canada, News Release, 2011-23, "Harper Government
Strengthens Food Allergen Labelling Regulations" (14 February 2011)
online: Health Canada . A national Canadian survey
conducted in 2008 and 2009 reported the following probable rates of food
allergies: 0.93% peanut allergy; 1.14% tree nut; 0.48% fish; 1.42%
shellfish; and 0.09% sesame. Moshe Ben-Shoshan et al, "A
Population-based Study on Peanut, Tree Nut, Fish, Shellfish, and Sesame
Allergy Prevalence in Canada" (2010) 125:6 Journal of Allergy and
Clinical Immunology 1327. Self-reported allergies were slightly higher
than the probable allergy rates. Researchers have also collected
self-reported data from Canadians on milk, egg, and wheat allergies
(2.09%, 0.8%, and 0.77%, respectively) but caution that the
"unusually high prevalence of milk and wheat allergy in adults is
not consistent with the literature, and may be due to participant
confusion with lactose intolerance and celiac disease." See Lianne
Soller et al, "Estimating the Prevalence of Milk, Egg, and Wheat
Allergies in the Canadian Population" (2010) 6:Supp 3 Allergy,
Asthma & Clinical Immunology P37 at P37.

(6) Moshe Ben-Shoshan et al, "Is the Prevalence of Peanut
Allergy Increasing? A 5-year Follow-up Study in Children in
Montreal" (2009) 123:4 Journal of Allergy and Clinical Immunology
783. This study of Montreal schoolchildren found that rates of peanut
allergy remained stable over 2000 to 2007 (ibid).

(13) Another survey studied experiences of persons with peanut and
tree nut allergies who reported having allergic reactions during
commercial flights in the United States. These results were published as
a letter to the editor. Matthew J Greenhawt, Marc S McMorris &
Terence J Furlong, "Self-reported Allergic Reactions to Peanuts and
Tree Nuts Occurring on Commercial Airlines" (2009) 124:3 Journal of
Allergy and Clinical Immunology 598.

(14) Greenhawt, McMorris & Furlong, ibid.

(15) The term 'anaphylaxis' refers to a severe allergic
reaction that can progress quickly, affecting major systems of the body,
and can be fatal if not treated urgently.

(16) Sabrina's Law, 2005, SO 2005, c 7.

(17) For instance, Mr. Levac noted that not all public schools
provide EpiPen instruction and stated that it is often up to parents to
provide this training. In Ontario, legislative discussion of anaphylaxis
management in schools dates back to the mid-1990s. In 1996, a MPP
questioned what steps the Minister of Education was taking to address
anaphylaxis in schools and noted that a Scarborough student had died of
an acute food reaction two years earlier. It was also indicated that
parents have been calling for the introduction of EpiPens in classrooms
and on school field trips. The Minister, then Hon. J. Snobelen,
responded that the ministry had sent recommendations from the
Anaphylaxis Task Force, the Canadian Society of Allergy and Clinical
Immunology, and the Allergy Asthma Information Association to every
school board across the province to support them in developing
anaphylaxis programs and policies.

(19) Alberta, Legislative Assembly, Hansard, 27thLeg, 3rd Sess, No
17 (15 March 2010) at 467. The text of Motion 504 is as follows:

(20) Ibid at 468. MLA MacDonald stated: "These
life-threatening allergies appear to be on the rise in western cultures.
There are some experts that speculate that this is due to improved
hygienic standards. Now, I can't say whether that's fact or
whether it's fiction, but certainly it is interesting" (ibid).

(21) Ibid ("[i]n Ontario in 2003 a 13-year-old girl named
Sabrina Shannon unknowingly ate french fries from the school cafeteria
that had been contaminated with a dairy product. Sabrina went into shock
and passed away before school staff could give her a dose from her
EpiPen, which was stored in her locker" at 468).

(22) Ibid at 469 (Doug Griffiths).

(23) School Act, RSA 2000, c S-3, s 45(8).

(24) Bill M 210, Anaphylactic Student Protection Act, 2007, 3rd
Sess, 38 Leg, British Columbia, 2007. David Cubberley, the MLA who
introduced the bill, commented: "This bill is modelled on
Sabrina's Law adopted in Ontario after Sabrina Shannon died from
inadvertently consuming fries that were likely contaminated with a dairy
protein, to which she was highly allergic." British Columbia,
Legislative Assembly, Official Report of the Debates of the Legislative
Assembly, 38th Parl, 3rd Sess, No 17 (28 March 2007) at 6531 (David
Cubberley).

(25) In introducing a proposed Act, a member of the British
Columbia Legislative Assembly stated: "There is also a legislative
option [to address anaphylaxis in schools]. In 2005 Ontario adopted
Sabrina's law, named after a young girl, Sabrina Shannon, who died
at the age of 13 after eating french fries that were accidentally
cross-contaminated with cheese in a school kitchen." British
Columbia, Legislative Assembly, Official Report of the Debates of the
Legislative Assembly, 38th Parl, 3rd Sess, No 17 (27 March 2007) at 6471
(Shane Simpson).

(26) British Columbia, Legislative Assembly, Official Report of the
Debates of the Legislative Assembly, 38th Parl, 3rd Sess, No 21 (28 May
2007) at 8220 (David Cubberley): "A week after I introduced this
bill to the House, young Carley Kohnen of Victoria died in a direct
parallel of the events that claimed Sabrina Shannon's life.... Like
Sabrina, she asked about the food before eating it. But she was
inadvertently given inaccurate information. Shortly afterwards a fatal
reaction set in, and like Sabrina's, her EpiPen sat in her locker
at school unused and unavailable.... I believe we can honour young
Carley's life by passing the bill that's before this
House"

(31) Prince Edward Island, Department of Education and Early
Childhood Development, Minister's Directive No MD 2008-06,
Procedures for Dealing with Life-threatening Allergies (Summerside:
Department of Education and Early Childhood Development, 2008), online:
Department of Education and Early Childhood Development
.

(33) For commentary on this issue, see e.g. Matthew B Stanbrook,
Thomas Kovesi & Paul C Hebert, "Pets in Airplane Cabins: An
Unnecessary Allergic Hazard" (2010) 182:5 Canadian Medical
Association Journal 421. In August 2011, the Canadian Medical
Association debated a motion calling on airlines to cease transporting
animals in the passenger cabin, with the exception of assistance animals
for persons with disabilities. See Roger Collier, "Pack Pooches in
the Cargo Hold, CMA says" (2011) 183 Canadian Medical Association
Journal E999.

(34) Decision No 66-AT-A-2010, "Applications by Katherine
Covell and Sarah Daviau against Air Canada and ah application by Dr. J.
David Spence against Air Canada, Air Canada Jazz and WestJet",
Canadian Transportation Agency (25 February 2010), online: Canadian
Transportation Agency .

(35) SC 1996, c 10, ss 170-172 [CTA].

(36) Supra note 1.

(37) Ibid at para 15.

(38) Ibid at para 4.

(39) The Agency provided guidance on appropriate buffer zones for
different areas of aircraft in Air Canada's fleet (e.g. business
class cabin, economy cabin).

(42) For a sumrnary of deferral policies from other countries, see
National Health Service (UK), "Frequently Asked Questions: What are
the donor selection criteria for MSM in other countries?" online:
National Health Service
.

(43) National Health Service, News Release, "Blood donor ban
lifted for men who have sex with men" (9 September 2011) online:
National Health Service
.

(44) Freeman, supra note 2.

(45) Ibid at para 204.

(46) On the s 32 Charter analysis, Aitken J concluded: "CBS is
an autonomous private corporation whose governance structure does not
include government control. The fact that it performs an important
public function, its activities are highly regulated by the federal
government, and it is funded in great measure by the provincial and
territorial governments does not mean that CBS is a governmental entity
for the purposes of s. 32", ibid at para 343.

(47) See ibid at para 28: "The policy of CBS that prevents MSM
from donating blood impacts on two vulnerable groups in Canadian
society: blood and blood product recipients and gay and bisexual
men."

(49) William Leiss, Michael Tyshenko & Dan Krewski, MSM Donor
Deferral Risk Assessment: Ah Analysis using Risk Management Principles:
A Report for Canadian Blood Services (Ottawa: McLaughlin Centre for
Population Health Risk Assessment, University of Ottawa, 2007) online:
William Leiss ["University of
Ottawa report"]. The findings were subsequently published in
peer-reviewed scientific literature. See William Leiss, Michael Tyshenko
& Daniel Krewski, "Men Having Sex With Men Donor Deferral Risk
Assessment: An Analysis Using Risk Management Principles" (2008)
22:1 Transfusion Medicine Reviews 35. In a review of evidence that has
become available since the preparation of the 2007 report, the lead
author published a 2011 commentary arguing in support of a five-year
deferral. He notes that blood testing technology has become increasingly
sensitive at detecting infectious agents and argues that "a 5-year
deferral could be implemented without increasing residual risk. Once
further evidence had been accumulated as a result of that policy change,
one could be in a position to move more confidently to a 1-year deferral
period or to some other appropriate policy choice." William Leiss,
"Catastrophic Failures in Risk Management, 3: Blood Donation Risk
and Gay Men" (2011) [unpublished], online: William Leiss
at 2Catastrophic Failures"].

(54) A 2009 study determined that nucleic acid testing, a highly
sensitive technique, would fail to detect infected blood one time in ten
million. See Eleftherios C. Vamvakas, "Scientific Background on the
Risk Engendered by Reducing the Lifetime Blood Donation Deferral Period
for Men who have Sex with Men" (2009) 23:2 Transfusion Medicine
Reviews 85.

(55) Vamvakas, "Relative Risk", supra note 51 at 57,
citing Clive R Seed et al, "No Evidence of a Significantly
Increased Risk of Transfusion Transmitted Human Immunodeficiency Virus
Infection in Australia Subsequent to Implementing a 12-Month Deferral
for Men who have had Sex with Men" (2010) 50:12 Transfusion 2722.
In the Australian study, five HIV-positive, MSM donors were identified
through blood testing, but all five had had MSM sexual activity within
the previous year, so donated in contravention of the 12-month deferral
rule.

(56) P Grenfell et al, "Views and Experiences of Men who have
Sex with Men on the Ban on Blood Donation: A Cross Sectional Survey with
Qualitative Interviews", online: (2011) 343 British Medical Journal
d5604 at 5 .

(57) Jay P Brooks, "Blood Donation in Men who have Sex with
Men" (2011) 343 British Medical Journal d6040 at d6041.

(59) Canadian Blood Services, Web Statement, "Canadian Blood
Services Policy on Excluding Men Who Have Had Sex with Men (MSM) from
Donating Blood" (19 October 2011) online: Canadian Blood Services
.

(60) Debate may arise as to whether descriptions of particular
events as tragedies of scandals is accurate or hyperbole, and different
interest groups may wish to hype or downplay events, but analysis of
this issue is outside the scope of this paper.

(74) Ibid at 130. The article generated strong opposition and the
magazine's editor was replaced shortly after the article was
published, generating speculation that "what did [the editor] in
was a recent piece ... titled 'It's just nuts,' which
enraged parents by questioning whether allergy-based food bans in
schools have gone too far." See Adam McDowell, "Chatelaine
sheds yet another editor", National Post (30 November 2009). For
examples of critical responses to the article, see e.g. Gwen Smith,
"What's nuts, Chatelaine, is not to be concerned", CBC
News (10 November 2009) online: CBC . The author
wrote: "[w]hen the top women's magazine in the country takes a
snide, cynical run at a serious health issue that affects children,
these are truly different times in the publishing industry. The magazine
is Chatelaine, and the hit-and-run article in its December issue is
called 'It's Just Nuts.' ... [It is disturbing] that this
article ran in Chatelaine, the warm, sensitive, loyal best friend to
Canadian women and their children. The magazine, with its impressive
reach of 3.5 million readers, is known for strong lifestyle
fare--recipes, fitness and home decor stories--and, when it comes to
feature articles, for consistently fair reporting. In Canada, getting
taken down in Chatelaine is as close as it gets to being kneecapped by
Oprah" (ibid). See also comments posted on a Chatelaine discussion
board: . Allergic Living magazine
also posted a number of responses. See Sara Shannon, "Sara
Shannon's Reply to Chatelaine's 'It's Just
Nuts'" (16 November 2009), online: Allergic Living
; and
"Chatelaine--Our Forum's Rebuttal", online: Allergic
Living .

(81) Bob Roehr, "Should Men who have ever had Sex with Men be
Allowed to Give Blood? Yes" (2009) 338 British Medical Journal
b311. For the counter-response, see Jay P Brooks, "Should Men who
have ever had Sex with be Allowed to Give Blood? No" (2009) 338
British Medical Journal b318. For discussion of other potentially
discriminatory categories, see also Anthony Vernillo, "Blood Is a
Precious Resource: Does It Really Matter Who Donates It?" (2010)
10:2 American Journal of Bioethics 44.

(84) Mark A Wainberg et al, "Reconsidering the Lifetime
Deferral of Blood Donation by Men who have Sex with Men" (2010) 182
Canadian Medical Association Journal 1321.

(85) CBS currently imposes a five-year deferral period on organ
donations from MSM, but until December 2007, had a permanent deferral.
It has been suggested that the policy change "seems to have been
based on a consideration of relative risk and the supply and demand of
available donors." See ibid at 1323.

(86) Freeman, supra note 2 at para 526.

(87) Ibid at para 604.

(88) Ibid at para 608. In the US context, the Food and Drug
Administration has been described as relying on "iffy science"
to justify its permanent deferral policy. See Charlene Galarneau,
"Blood Donation, Deferral, and Discrimination: FDA Donor Deferral
Policy for Men who have Sex with Men" (2010) 10:2 American Journal
of Bioethics 29 at 32.

(109) Leo & Clark, supra note 8 at 189 write:
""Because of the large number of children without allergies,
in both public and private schools, declaring nut-free buildings can
create conflict among families. It has been argued that widespread
removal of peanut and tree nut products from a school infringes on the
personal rights of other children. In some school systems, this view has
led to conflicts between families regarding the choices made by school
administrators."

(115) Supra note 60 at 1023 (Mr. Yakabusi). He continues on to say:
"We had a chat with the teacher and also with the parents of the
child, and we very quickly gained a good understanding of just how
dangerous and acute the reactions could be. So it seemed to us then to
be quite a small sacrifice to make under the circumstances" (ibid).

(119) Manitoba, Legislative Assembly, Debates and Proceedings, 39th
Leg, 2nd Sess, No 60 (3 June 2008) at 2570 (Erin Selby). She added:
"If you're quite confident that your child cannot possibly
come into contact with peanuts, well, maybe you won't worry about
educating them on the safety of avoiding it, or perhaps one day you
might not pack their EpiPen with them, and that, definitely, is not a
good situation" (ibid).

(120) Canadian School Boards Association, Anaphylaxis: A Handbook
for School Boards (Ottawa: Canadian School Boards Association, 2001) at
25.

(121) Decision No 4-AT-A-2010, supra note 1 at para 97.

(122) Freeman, supra note 2 at para 3. See also para 403: "Put
simply, blood donation is a gift ... There is no requirement under the
law for CBS, or any other blood provider, to accept the gift of blood
from anyone."

(123) Ibid at para 38.

(124) Vamvakas, "Relative Risk", supra note 51 at 57.

(125) "University of Ottawa report", supra note 49 at 45.

(126) See Freeman, supra note 2 at para 133: "It is of
critical importance to our health care system, and to the well-being of
the users of that system, that a high level of trust in the blood supply
system be fostered."

(127) Ibid at para 227: "... our collective well-being is at
stake."

(128) See text accompanying note 82.

(129) Aitken J referred to the "overwhelming weight of
evidence" that MSM have a higher risk of infection. See Freeman,
supra note 2 at para 294. In introducing new guidelines for health
services to MSM in June 2011, the World Health Organization reported
that "men who have sex with men are nearly 20 times more likely to
be infected with HIV than general populations." See World Health
Organization, News Release, "Scaling up HIV Services for Men who
have Sex with Men and Transgender People" (21 June 2011) online:
.

(130) Freeman, supra note 2 at para 294.

(131) Jason Behrmann, "Ethical Principles as a Guide in
Implementing Policies for the Management of Food Allergies in
Schools" (2010) 26 Journal of School Nursing 183 at 188 [emphasis
added].

(132) See testimony of Tad Brown, appearing before the Ontario
Standing Committee on General Government, see Ontario, House of Commons,
Standing Committee on General Government, Committee Transcripts (4 May
2005) at G-I026. Kim Craitor, a member of Provincial Parliament
responded: "you said that sometimes [parents are] ...
'emotional, a little irrational.' I tell you, when it comes to
the safety of kids, there's nothing wrong with that" (ibid at
G-1026) .

(133) Supra note 19 at 470 (Harry B. Chase).

(134) Greenhawt et al, supra note 110 at 93.

(135) Ibid.

(136) Supra note 119 at 2570 [emphasis added].

(137) Canadian Society of Allergy and Clinical Immunology,
"Anaphylaxis in Schools and Other Child Care Settings" (August
1995), online: Canadian Society of Allergy and Clinical Immunology
.

(139) Decision No 4-AT-A-2010, supra note 1 ("[i]n light of
the evidence, the Agency finds that the risk of an allergic reaction due
to the inhalation of peanut or nut particles on aircraft is
significantly reduced on modern generation aircraft as a result of both
the aircraft air filtration and circulation systems. The Agency accepts
the expert evidence that the greater risk of a serious allergic reaction
is from ingestion due to an accidental exposure" at para 83).

(146) In human rights jurisprudence, the Supreme Court of Canada
has instructed that individual assessments ought to be incorporated to
avoid discriminatory impacts of policies that exclude persons with
disabilities from benefits available to others. Individual assessments
are not required where they will cause undue hardship. For discussion,
see e.g. British Columbia (Superintendent of Motor Vehicles) v British
Columbia (Council of Human Rights), [1999] 3 SCR 868, 181 DLR (4th) 385.

(147) Concern has been expressed about inconsistent application of
policies among airlines. For example, a U.S. survey of airline
passengers with allergies found that over 60% of respondents had
provided advance notice of their allergy to the airline and requested
accommodation, but just under 40% actually received accommodation.
Greenhawt, McMorris & Furlong, supra note 110.

(148) Grenfell et al, supra note 56.

(149) Vamvakas, "Relative Risk", supra note 51 at 47.

* Nola M. Ries, JD, MPA, LLM is a Research Associate with the
Health Law Institute, University of Alberta. The author is grateful to
Katherine J. Fisher, BScN, MN, JD candidate at the Faculty of Law,
University of Alberta, for excellent research assistance. This work was
supported with funding from the Allergy, Genes and Environment Network
of Centres of Excellence (AllerGen NCE Inc.) and the Canadian Blood
Services James Kreppner Fellowship.

What else do we need to legislate? Should we be legislating safety
practices for football programs? Should it be in legislation exactly
what sort of safety practices you're going to have for a football
program or a hockey program? Are we going to put in legislation
the safety protocols for playing on the playground over lunchtime
rather than in school policy? How much do we actually have to put
in legislation, and will it make us all safer? (22)

the original catastrophic failure in the risk management of donated
blood, in Canada and elsewhere during the 1980s, gave rise to a
second failure, which continues down to the present day. This
second failure, attributable to the blood regulatory agencies, is
the unwillingness to adjust the deferral period for blood donations
by gay men in accordance with evidence-based reasoning. It amounts
to a clearly unreasonable form of discrimination based on sexual
orientation, and it is a public policy scandal, a blemish on our
devotion to the rights and freedoms of individuals that will
persist until it is changed, as it must be. (71)

Legislation in and of itself is not going to teach a teacher about
an EpiPen. Legislation in and of itself is not going to educate the
parents in that school community as to how important it is that
they're careful with what foods they put in their own child's
lunch. Legislation in and of itself isn't necessarily going to
change the overall attitudes that continue to pose a danger for
students around this province. (72)

The issue is not whether nut allergies exist or whether they can
occasionally be serious. Nor is the issue whether reasonable
accommodation should be made for the few children who have
documented serious allergies. The issue is what accounts for the
extreme responses to nut allergies and what to do about the
responses and the allergies themselves. (80)

testified that, although he considered a blanket exclusion of
MSM prudent in the early 1980s, he believed that it can no longer
be justified when current epidemiologic studies have shown that it
is only certain types of MSM activity that pose a higher risk for
the transmission of HIV ... In his view, MSM sexual histories could
be reliably ascertained through interviews and MSM excluded based
on high risk activities only. His recommendation was for MSM donor
exclusion to be based on whether a man had had unprotected (without
a condom) anal sex (receptive or insertive) with another male
within a specified period of time (perhaps within the last year or
within the last five years). (95)

Although some would prefer a system that assesses every
individual's behaviour and level of risk rather than applying
deferrals to groups, [an expert] review concluded that there is
insufficient evidence available to be able to determine the impact
on blood safety of such a system. It is also not certain that all
people could objectively assess their own level of risk. Based on
published data, the review also concluded that the introduction of
extensive donor questions regarding sexual behaviour could lead to
a loss of existing donors who may find the process intrusive. The
Blood Services are therefore required to follow deferral rules that
estimate the statistical risk of certain groups based on behaviour.
We are sorry for any inadvertent offence this may cause. (99)

helps to ensure that children with certain health problems are
given equal and appropriate educational opportunity, and are not
discriminated against during the school day. For example, the 504
law prevents a child from being forced to eat lunch in the nurse's
office, excluded from a field trip, or excluded from a classroom
project on the basis of the child's food allergy. Section 504 [of
the Act] is widely utilized by parents of food-allergic children to
create a written management plan ... in collaboration with key
school personnel and the child's allergist and/or primary care
physician. (106)

The frustration expressed by parents of unaffected children should
not be dismissed by those who are affected by food allergy.
Although the concerns of food-allergic families need to be taken
into account, and establishing policies that maximize safety is
paramount, seeking input and participation from non-food-allergic
families may help this process go more smoothly. It is important to
recognize that both sides have the right to express their feelings,
which can help foster a productive debate leading to mutually
satisfactory solutions. (110)

I have to be honest with you. I remember when our children started
school. Our youngest ... was given instructions that he couldn't
bring certain things to school for lunches and/or snacks because of
the fact that there was an anaphylactic child in his class ... Our
first reaction, my wife and I, was, "What's this all about? Why
should our son not be able to take what he wants to school for
lunch?" (115)

Protecting children with life-threatening food allergies means
imposing some limitations on the foods that other children and
school staff can bring into the school or on the places where those
foods can be enjoyed. Because one of the most common allergens is
peanut, and peanut butter is one of the most popular items for
school lunches, emotions have run high in some boards when attempts
have been made to "ban" peanut butter. In fact, experience suggests
that the outright banning of any substance is not only
controversial , but it is also less successful than cultivating
understanding and enlisting the voluntary support of members of the
school community. (120)

Decision makers in public health--including school health--should
thus imagine themselves as 'caring parents' for members of society
under their responsibility, and they should ask themselves the
following question: "what resources and level of protection would
you expect if it were your food allergic child?" The answer to this
question can prove valuable in informing choices about which
policies to enact within a given school or child care facility.
(131)

[t]he risk of a reaction from a non-ingestion environmental
accidental contact appears to be extremely low. Using peanut as an
example, researchers failed to detect peanut in neck-level air
filters after walking on peanuts in a poorly ventilated room.
Similarly, inhaling in close proximity to peanut butter did not
induce reactions. No peanut was detected on surfaces after cleaning
with commercial products, and hand washing (but not liquid
sanitizer) removed peanut from one's skin. (134)

In the case of nuts, many schools have chosen to be nut-free,
because it is one of the more dangerous allergies and the one that
is one of the more-sensitive ones. Children with nut allergies
don't even necessarily have to come in contact with peanuts. They
may just breathe in the air. They may sit close to someone who had
a peanut butter sandwich earlier. (136)

Be it resolved that the Legislative Assembly urge the government to
introduce legislation requiring all school boards to establish and
maintain an anaphylactic policy that includes strategies to reduce
exposure to anaphylactic causative agents, information on
life-threatening allergies, annual first aid training on dealing
with life-threatening allergies, and a requirement for every
school principal to develop a plan for each pupil affected by
an anaphylactic allergy, including the maintenance of a file for
each anaphylactic pupil (ibid).